Editor's note: Shenzhen Intermediate People's Court Issue 75 "Judges' Statement" program invited the Shenzhen Qianhai Cooperation Zone People's Court (hereinafter referred to as Qianhai Court) to interpret an insurance contract dispute. The case will reproduce the relevant cases and analysis content as follows for readers' reference.
Judge Profile
Peng Liang, International Law , Common Law Master, currently a member of the Trial Committee of Qianhai Court, deputy director of the Executive Bureau, and a fourth-level senior judge. He has been engaged in foreign-related commercial trials for many years. In recent years, he has won many honors such as third-class merit, , second-class merit, , collective third-class merit of the trial team, advanced individual reform and innovation, and city-wide trial business experts.
1. Case introduction
In June 2019, Zhou purchased a M company's "Wanguo Travel" overseas travel protection plan through WeChat by M company's sales agent. The insurance items include accidental death and disability protection, medical compensation (including inpatient and outpatient medical expenses), medical transportation and round trips, travel changes, etc. During the insurance period of
, Zhou suffered from acute cholecystitis during his travel to Seattle, USA and underwent gallbladder removal surgery. Before the operation, Zhou's wife Liu called Company M -
Zhou's wife
Zhou suffered from acute cholecystitis while traveling in Seattle, USA and was preparing to undergo gallbladder removal surgery. We want to apply for insurance claims.
Mrs. Zhou is embarrassed. The disease claimed by Mr. Zhou this time, " gallbladder stones with acute cholecystitis" already existed before the policy came into effect. is a case where the insurance contract liability exemption from . We refuse to pay .
M company employee
Zhou Mou's wife
How can this be done? ! He didn't get this disease before buying your insurance.
...
Both parties filed a dispute over the claim and filed a lawsuit with Qianhai Court. Zhou asked the court to order the defendant M Company to compensate him for medical compensation insurance, "tourism change" insurance and interest of more than 100,000 yuan.
2. The judge said
Host
The plaintiff in the case suffered from acute cholecystitis when he went abroad. This is not within the scope of this insurance claim?
First of all, we must figure out the terms agreed in this policy, especially the terms of exemption. According to the format clause in the policy, if this disease already exists before purchasing insurance, the insurance company can be exempted from liability. insurance company refuses to file claims based on this article.
Judge
Host
Was Zhou clear about this disclaimer clause ?
was found by the court that because the insurance company did not provide evidence of the following points, the court found that Zhou was not aware of the exemption clause of the insurance contract when he purchased the accident insurance accident insurance .
Judge
1 No evidence to prove that he showed Zhou’s insurance contract when he purchased the insurance in this case;
2 No evidence to prove that the insurance company had reminded Zhou to read the special agreement in the insurance policy;
3 No evidence to prove that Zhou had informed or reminded Zhou to scan the QR code on the insurance policy to read the insurance contract and agree to the insurance company’s disclaimer.
Host
When buying insurance, does the salesperson have to inform the insurance terms in detail?
Yes. The " Civil Code " was not implemented at the time of the judgment in this case. Article 17 of the " Insurance Law of the People's Republic of China" stipulates that if an insurance contract is concluded using the standard terms provided by the insurer, the insurance policy provided by the insurer to the insurer shall be attached with standard terms, and the insurer shall explain the content of the contract to the insurer.
For the provisions in the insurance contract that exempt the insurer from liability, the insurer shall make a reminder on the policy, insurance policy or other insurance certificate when concluding the contract, and make a clear explanation to the insured in writing or oral form of the content of the clause; if does not make a reminder or explicit explanation, the clause shall not be effective.
The insurance contract presented by the insurance company in this case is a standard clause and is a clause that the insurance company pre-programmed for reuse and did not negotiate with the other party when entering into the contract. Therefore, when an insurance company sells insurance products to Zhou, it should provide prompts and special instructions to Zhou in accordance with the law for various standard terms he has formulated. Especially for the exemption clause for insurance contracts, Zhou should obtain the express consent of Zhou.
Judge
Host
Does that mean that the disclaimer content in the insurance policy is not binding on Zhou?
Yes, the above disclaimer submitted by the insurance company has no evidence to prove that Zhou has been informed or approved by Zhou, thus binding on Zhou. Therefore, the insurance exemption clause of the insurance company should not be the content of the plaintiff's insurance contract and will not have legal effect on Zhou.
Judge
Host
Host
Since there is no binding force, should the insurance company pay compensation? This was originally supposed to be the case with
, but Zhou failed to provide relevant evidence of actual payment of medical expenses. After the court opened the trial, he appointed a separate time limit for him to submit the evidence, but because the evidence of medical expenses was formed in the United States, Zhou did not retain it at the time, so he could not submit it. In the end, the case did not support the plaintiff's lawsuit.
Judge
After the trial, the court held that although the disclaimer in this case exists, the disclaimer clause has no effect on Zhou, but Zhou's claim cannot be supported due to insufficient evidence. The court finally ruled to reject Zhou's lawsuit.
3. Things to note when purchasing accident insurance abroad
1. See clearly
. Purchase accident insurance abroad
You should see clearly the specific content of the disclaimer clause before deciding whether to purchase it.
2. Before understanding
policyholders should not only understand the insurance type, premium, and compensation amount of insurance, but also have the awareness of checking the insurance terms. In particular, the exemption terms should be read carefully before purchasing, so that they are clear and clear, and be cautious in finding acquaintances and friends on WeChat to purchase insurance services that they do not understand in advance. Do not trust their publicity and do not study them carefully.
3. Save
If you are in danger abroad, remember to collect and keep the accident certificate and fee certificate in time. For medical treatment or hospitalization, keep the outpatient or hospitalization medical records, payment certificates, fee detailed lists and other relevant evidence for compensation.
Article 496 of the Civil Code
format clause is a clause that the parties have pre-programmed for reuse and have not negotiated with the other party when entering into the contract.
If a contract is concluded using standard terms, the party providing the standard terms shall determine the rights and obligations between the parties in accordance with the principle of fairness, and adopt reasonable methods to remind the other party to pay attention to exemption or reduction of their responsibilities, and other clauses that have a significant interest in the other party, and explain the clauses according to the other party's requirements. If the party providing the standard terms fails to fulfill the obligation to remind or explain, resulting in the other party failing to pay attention to or understand the terms that have a significant interest in it, the other party may claim that the terms do not become the content of the contract.
"Minutes of the National Courts' Work Conference on Implementing the Civil Code" Point 7
If a party providing the standard terms exempts or reduces his or her responsibilities in the standard terms and uses special signs such as text, symbols, fonts, etc. that are sufficient to attract the other party's attention when signing the contract, and explains the standard terms in a way that ordinary people can understand according to the other party's requirements, the people's court shall determine that it complies with the "adopt a reasonable approach" as stated in Article 496 of the Civil Code. The party providing the standard terms shall bear the burden of proof for fulfilling reasonable reminders and explanations.
Statement: This article is reprinted from the WeChat public account of "Shenzhen Intermediate People's Court", thank you here!
Editor: Cheng Shihan
Typesetting: Wang Qiao
Review: Liu Chang
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